Since the mid-1990s, the U.S. Patent and Trademark Office has issued countless bad software patents. These patents tend to be hopelessly vague and overbroad. Indeed, they are often so packed with indecipherable patent jargon that software engineers have trouble understanding them. As one programmer told This American Life, even his own patents look like pure “mumbo jumbo.” When they fall into the hands of patent trolls, these vague software patents become a tax on innovation.

One of the worst problems with software patents is a phenomenon known as functional claiming. This is where a patent lays claim to all possible approaches to a problem, instead of the specific solution proposed by the inventor. It’s as if in another field, someone tried to claim any arrangement of molecules in a pill to cure headaches instead of claiming a particular drug. The resulting patents are far too broad and threaten everyone else trying to innovate in the same space.

The PTO may finally be realizing that overbroad software patents are a serious problem. It recently held a series of roundtables to discuss the quality of software patents and the problem of functional claiming. It also called for members of the public to submit written comments. Yesterday, we filed detailed comments urging the PTO to improve its review of software patents.

We urge the PTO to solve the functional claiming problem by requiring patent applicants to claim their particular solutions. In the software context, this is the specific set of algorithms that accomplishes a task. If the applicant does not detail actual algorithms then the patent should simply be found invalid. And to ensure that applicants actually provide solutions we argue that they should have to submit working code with their applications. If applicants don’t submit code they should at least be required to submit detailed, line-by-line notations explaining how their code works in order to get a patent.

Of course, these are just small changes to a deeply flawed system. We need fundamental patent reform. At EFF, we have proposed more ideas at Defend Innovation—please check them out and provide feedback. We also urge you to support the SHIELD Act, proposed legislation that would make the patent troll business model less attractive.

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